Tarasoff Revisited: Nebraska Court Rejects Obligation Of Psychiatrist After Patient Murders Girlfriend

There is a tragic situation from Omaha which has resulted in a notable decision over tort liability for psychiatrists. The situation involves a patient, Mikael Loyd, who was admitted to Lasting Hope Recovery Center later he informed police he wanted their help in killing his mother. Psychiatrist Jeana Benton decided he was not a risk at the hospital and he was released. He then strangled his girlfriend, Melissa Rodriguez, who broke up with him throughout his hospital stay.  Her buddy, Angela Rodriguez and Adan Rodriguez, hailed Lasting Hope and Benton’s employer, University of Nebraska Medical Center Physicians, but the Nebraska Supreme Court affirmed the dismissal of their action due to a lack of any legal obligation to warn or protect the girlfriend.

Melissa’s body was discovered the day following the launch of Loyd, who’d returned into Lasting Hope and was arrested there. Loyd was later found incompetent to stand trial.
The ruling discusses the case of Tarasoff v. Regents of University of California, which I teach in my torts course. When she stated she wanted to date other men, Podder went into counseling in the University Health Service and can be treated with psychologist, Dr. Lawrence Moore. After he told Moore that he wanted to get a gun and kill Tarasoff, Moore delivered a letter to campus police who interviewed Podder and decided he was not a risk. Podder then went straight ahead and killed Tarasoff.
Justice Mathew O. Tobriner maintained that”… the private character of patient-psychotherapist communications has to yield to the extent that disclosure is essential to avert threat to other people. The protective privilege ends where the public peril begins” Because of this, the hospital was held liable for the criminal actions of another party — something which generally (but not necessarily ) cuts off proximate causation. In addition, it rejects powerful arguments made by physicians that such accountability could create a chilling affect on counseling. A great number of individuals frequently express their anger by focusing on people and stating an intent to”kill that man.” In the vast majority of such circumstances, the open disclosure is addressed and defused. But if the patient understands that the doctor might need to tell authorities, such feelings are less likely to be expressed and addressed.
We’ve discussed conclusions stretching Tarasoff. But some states have passed legislation limiting its effect. Back in Nebraska, the state supreme court previously ruled in Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73 (2006) this:

[A] psychiatrist is responsible for failing to warn of and protect from a patient’s threatened violent behavior, or failing to predict and warn of and protect from a patient’s violent behavior, once the patient has conveyed to the psychiatrist a significant threat of bodily violence against himself, herself, along with a reasonably identifiable victim or victims. The obligation to warn of or to take reasonable precautions to provide protection against violent behavior will arise only under those limited situations… and will be discharged by the psychiatrist if reasonable attempts are made to communicate the threat of the victim or victims and to your law enforcement agency.

It later added the caution that “`[A] duty to protect and warn arises only if the information carried to the psychiatrist leads the psychiatrist to believe his or her patient poses a significant threat of grave bodily injury .'”
In cases like this, the court ruled that burden was not satisfied.  The court distinguished between the obligation to the mother Instead of the girlfriend:

Here, it’s uncontroverted that Loyd never actually communicated to Benton he intended to harm Melissa. We noted in Rodriguez I if the Special Administrators’ claim were supported with facts that Loyd had communicated to Benton a significant threat of bodily violence against Melissa, those facts might give rise to an obligation to warn. But the undisputed truth today in the document don’t support this allegation.
Indeed, the single reasonably identifiable victim whom Loyd conveyed an intent to physically harm was his mommy. Throughout Benton’s tests, Loyd specifically expressed an intention to kill his mother in retaliation for his father’s death. According to those verbal expressions of threats, Benton ordered Lasting Hope staff to phone Loyd’s mother to frighten her. And by now Benton had ordered Loyd’s release, she understood that OPD was conscious of Loyd’s threats of physical violence against his mother, because Lasting Hope employees had discussed the dangers together with OPD officials, who cautioned Loyd’s mother.
As the Special Administrators now concede, Loyd never expressed to Benton or anyone else in Lasting Hope he intended to harm Melissa. He identified Melissa by title or even by description in relationship with his saying homicidal ideation. And to this extent the arrest warrant recognized Melissa as the victim of Loyd’s previous misconduct, it didn’t amount to a real communicating by Loyd, nor did it forecast he would perpetrate physical violence against Melissa in the future. Consequently, no obligation to warn Melissa was triggered below Munstermann.

Notice, in spite of the statutory standard, the Court appears to affirm the obligation to warn the mother and Dr. Benton clearly knew that obligation in ordering the employees to reach out into the mother.
What’s also noteworthy is the talk of the obligation to safeguard compared to the obligation to warn. It was rejected:

As analyzed above, the first obligation implicated by Munstermann is the psychologist’s duty to warn. However, with its plain language, the Munstermann rule applies equally to the psychologist’s responsibility to safeguard.
In each clause of this Munstermann rule that limits psychiatrists’ obligation to warn, there is an equal limitation on their obligation to safeguard. …To the extent any obligation to protect and warn does appear, it”will likely be discharged by the psychiatrist if reasonable efforts are made to communicate the threat of the victim or victims and to your law enforcement agency”
…The Legislature explicitly enacted these limits in reaction to Tarasoff and, together, fashioned a state policy”to preempt an expansive judgment [in Nebraska] a therapist could be held responsible for the mere failure to forecast possible violence by her or his patient.” Just as failure to warn claims are premised in part on psychiatrists’ responsibility to predict their patients’ future violence, so too are failure to safeguard asserts. Consequently, we view the Munstermann rule as a true conclusion of state policy with respect to the obligation of psychiatrists to frighten –and protect–third parties out of their patients’ violent behavior.

There is also an interesting concurring opinion by Justice Jonathan Papik on the wider extent given the statute by the Court. Papik noted in Munsterman the Court acknowledged the statutes regulating the duties of licensed mental health practitioners and psychologists didn’t expressly apply to psychiatrists and, thus, a psychologist’s responsibility was”still controlled by common law.” Papik questions which foundation for then holding that while those statutes “`may not be literally applicable, [they are] clearly indicative of legislatively accepted public coverage.'” Id.  At 846, 716 N.W.2d at 84 (quot-ing Parson v. Chizek, 201 Neb. 754, 272 N.W.2d 48 (1978)).
S-19-1116, 3/5/21 .